Parsing Procedure 4
Before you start 4
After you finish parsing 4
Actus Reus 4
Mens Rea 5
I. INTRODUCTION 6
A. Sources of Criminal Law 6
Constitution Act, 1867 6
Canadian Charter of Rights and Freedoms 6
Criminal Code, 1985 7
Certainty, Vagueness, and Over breadth 7
Definitions: 7
R v Heywood 7
Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) 7
B. Statutory Interpretation 7
C. Elements of an Offence 8
D. The Role of the Prosecutor and Defence Counsel 8
The role of the Prosecutor 8
Boucher v The Queen 8
R v Anderson 8
Disclosure 8
R v Stinchcombe 8
Defence Counsel 9
E. The Quantum and Burden of Proof 9
Burden of Proof 9
Woolmington v DPP 9
R v Oakes 10
Presumption of Innocence 10
R v Keegstra 10
Quantum of Proof 10
R v Lifchus 11
R v Starr 11
G. Constitutional Dimensions of the Burden of Proof 11
R v Downey 11
R v Oakes 11
R v Keegstra 11
H. Constitutional Limits of Substantive Criminal Law 12
Canada v Bedford 12
II. ACTUS REUS 12
A. Voluntariness 12
R v Larsonneur 12
Killbride v Lake 12
R v Ruzic A defense that act is involuntary entitles A to complete and unqualified acquittal. 13
B. Acts and Omissions 13
R v Browne Begin at the offence creating s. 219 – legal duty leads to s. 217. 13
R v Thornton 13
C. Circumstances 13
D. Status 13
E. Consequence and Causation 13
R v Winning 14
Smithers v The Queen Smithers establishes a very low standard for causation 14
R v Harbottle 14
R v Nette 14
R v Maybin 15
F. Contemporaneity 15
Fagan v Commissioner of Metropolitan Police 15
R v Miller (English Case) 15
R v Cooper 15
R v Williams [No Contemporaneity] 16
III. MENS REA 16
A. Subjective Mens Rea 16
Subjective Standards of Fault 16
R v ADH 16
R v Buzzanga and Durocher 16
R v Tennant and Naccarato 16
Intention and Motive 16
R v Steane 16
R v Lewis 17
R v Hibbert 17
R v Buzzanga and Durocher 17
R v Theroux 17
Willful Blindness 18
R v Briscoe 18
Recklessness 18
R v Sansregret 18
B. Objective Mens Rea 18
R v Hundal 18
R v Creighton 19
R v Beatty 19
R v Roy 19
C. Constitutional Dimensions 19
Basic Principle 19
Minimum Mens Rea for Murder 20
R v Finta 20
IV. SEXUAL ASSAULT 20
Actus Reus 20
R v Ewanchuck 20
R v Chase 21
R v JA 21
R v Mabior 21
Mens Rea 21
Pappajohn v The Queen 21
Sansregret v The Queen 22
R v Malcolm 22
V. Extensions of Criminal Liability 22
Participation 22
Parties to Offence 22
Common Intention 22
Modes of Participation 23
R v Thatcher 23
R v Pickton 23
Aiding and Abetting 23
R v Greyeyes 23
R v Briscoe 23
Dunlop & Sylvester v R 23
R v Nixon 24
R v Kirkness 24
R v Gauthier 24
R v Logan 24
Counseling as a Form of Participation 24
R v O’Brien 24
Accessory after the fact 25
R v Duong 25
Inchoate Offence 25
R v Cline 25
Deutsch v The Queen 25
R v Ancio 25
R v Logan 25
R v Sorrell and Bondett 25
USA v Dynar 26
Incitement 26
R v Hamilton 26
Conspiracy 26
USA v Dynar 26
Other Forms of Inchoate Liability 26
R v Dery 26
New Statutory Forms of Inchoate Liability 26
R v Legare 26
R v Khawaja 27
VI. Defences 27
Mental Disorder and Automatism 27
Procedural Elements 27
Fitness to Stand Trial 27
R v Whittle [1994] (p. 794) 27
Who Can Raise the Mental Disorder Issue? 27
R v Swain [1991] (p. 795) 27
Burden of Proof 27
R v Chaulk pt. 1 [1990] (p. 798) 27
Consequences of Mental Disorder as a Defense 28
Winko v BC (1999) 28
Mental Disorder as a Defence 28
Mental Disorder or Disease of the Mind 28
R v Cooper 28
R v Bouchard-Lebrun 2011 SCC 28
Appreciating the Nature and Quality of the Act 28
Cooper v R (2) SCC: 28
R v Abbey (1982) 29
Knowing that the Act is Wrong 29
R v Chaulk pt. 2 29
R v Oommen 1994 SCC 29
Considering the Two Alternatives Arms of Mental Disorder Together 29
R v Landry 1988 (Que CA) 29
Mental Disorder and Non-Mental Disorder Automatism 29
R v Parks 1992 2 SCR 871 29
R v Rabey 29
R v Stone 1999 2 SCR 290 30
R v Luedecke 2008 ONCA 716 30
Intoxication 30
The Common Law Defence of Intoxication 30
DPP v Beard, 1920 HL 30
R v R v Bouchard-Lebrun, 2011 SCC 30
Intoxication and Specific Intent 31
R v George, 1960 SCC 31
R v Bernard, 1988 SCC 31
Extreme Intoxication and General Intent 31
R v Daviault, [1994] 3 SCR 63 31
R v SN, 2012 NUCJ 2 31
Involuntary Intoxication 32
R v Tatton 32
Self Defence 32
Section 34 32
Interpreting and Applying the Self-Defence Provisions 33
Subjectivity and Objectivity 33
R v Cinous, 2002 SCC 29 33
Reilly v The Queen, [1984] 2 SCR 396 33
R v. Kagaan 33
Proportionality and Other Aspects of “Reasonableness” 33
R v Kong, 2006 SCC 40 33
R v Nelson 1992 33
Gendered Violence, “Battered Women,” and Self-Defence 34
Sheehy 34
R v Lavallee, [1990] 1 SCR 852 34
R v Petel, [1994] 1 SCR 3 34
R v Malott, [1998] 1 SCR 123 35
Duress 35
R v Paquette 1977 35
R v Ruzic 2001 35
R v Ryan 2013 36
R v Aravena 36
R v Hibbert 36
Necessity 36
R v Perka 1984 37
R v Latimer 37
R v Unger, 2002 ONCA 37
Morgentaler v the Queen 38
R v Morgentaler, Smoling and Scott OCA 1985 38
Parsing Procedure
Before you start
The burden is at all times on the Crown needs to prove all of the following elements beyond a reasonable doubt.
· CITE Lifchus and Starr for BRD, Woolmington for the proposition that the burden is always on the Crown.
After you finish parsing
Immediately lay out the defined terms and their statutory definition below the parsed section.
Actus Reus
Voluntariness: a conscious decision to act or refrain from acting (CITE Ruzic), can place as Intent in MR conduct.
If Causation is in question:
· Factual causation: Established a logical link between A’s conduct and the prohibited consequence. “But for the act,” would it have occurred? On the facts, was it a cause? (Winning)
· Legal causation: is the causal connection sufficiently strong to support criminal liability?
o Smithers – beyond de minimus range
o Nette – layperson (jury) version: significant contributing cause
o Maybin – test for intervening acts: (1) reasonably foreseeable? (2) did it overtake original act?
o Blau and Smith – you take your victim as you find them. Just because other factors may have contributed to the outcome (e.g. poor medical response) does NOT necessarily mean that A’s actions were not operating cause.
If Contemporaneity is in question:
· Cite Cooper for proposition that it is sufficient that the AR and MR were contemporaneous at some point during the act.
· Cite Miller for the proposition that if someone commits AR without being aware of it, and upon becoming aware they fail to remedy, their decision not to remedy takes the place of the AR, and contemporaneity is achieved.
Mens Rea
· Basic presumption is that true crimes require subjective MR in absence of clear language to the contrary OR necessary implication (Gaunt & Watts, ADH).
· No absolute requirement of symmetry between AR and MR (De Sousa, Creighton).
· People can generally be taken to intend the natural consequences of their actions, in absence of evidence to the contrary (Gaunt and Watts).
o When discussing the importance of “evidence to the contrary” look to the jury instructions in WD.
· Deviations from the basic presumption:
o Deviation within subjective MR:
i. What does the policy objective of the statute demand in terms of blameworthiness of mind?
· Theroux – the “fraudulent” nature of the mischief parliament sought to address required that A had knowledge (not merely recklessness) of the circumstances that it was false.
ii. Particular language may require higher subjective MR standards (e.g. ‘wilfully’ in Buzzanga)
iii. Grammatical requirements of the words in the statutes
· adverbs = potential red flag for intention in circumstances
iv. Statutory definitions of words in the statute
o Deviating to objective MR:
§ Key trigger words:
· Reasonable
· Dangerous (Hundal, Beatty, Roy)
· (Criminal) Negligence
· Careless
· Unlawful Act (Creighton)
· Unlawfully [SOMETIMES]
o (De Sousa – it triggers objective, ADH it did not)
USE DEFINITIONS BELOW TO EXPLAIN WHAT NEEDS TO BE PROVEN
Word / Associated AR / DefinedIntention / Conduct / Synonymous with voluntariness in actus reus – ie a conscious decision to act or refrain from acting (CITE Ruzic)
Intention / Consequence / “The exercise of a 'free' will to produce a particular result” (CITE Lewis)
· CITE Hibbert: it is just "will," not 'free.'
· Duress does not negate intention for consequences.
Intention for consequences can be shown whether the underlying conduct is an act or an omission (CITE Bottineau)
Reckless / Circumstance or consequence / Shown where A knew of the “likely consequences” and chose to proceed anyway (Theroux, but DIFFERENT in Sansregret)
· Theroux leaves ambiguity as to whether or not that the "likelihood" of the risk is determinative of whether recklessness is present
“One who, aware that there is danger that his conduct could bring about [the prohibited consequence] … nevertheless persists, despite the risk.” (Sansregret)
o HOW TO CHOOSE
· Based on similarity of circumstance
· Sansregret - more recent, higher court
Wilful blindness / Circumstance or consequence / Arises where A’s “suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries.” (CITE Briscoe)
“[A] person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth.” (CITE Sansregret)
Motive / Consequence / Rarely required, always relevant
“That which precedes and induces the exercise of the will” (CITE Lewis)
· The reason why someone acted (NOT what they intended to do or make happen)
I. INTRODUCTION
A. Sources of Criminal Law
Constitution Act, 1867
Allocates exclusive jurisdiction to Parliament of Canada in s. 91:
· s. 91(27) criminal law and procedure, but not criminal courts; and
· s. 91(28) penitentiaries
Allocates exclusive jurisdiction to provincial parliaments in s. 92:
· s. 92(6) public prisons and reformatory prisons;
· s.92(13) property and civil rights (regulations);
· s.92(14) administration of justice, including courts of criminal jurisdiction (BCSC & BCCA)
· s. 92(15) punishments (including imprisonment) for contravening provincial laws that within provincial constitutional jurisdiction
Canadian Charter of Rights and Freedoms
Sets out constitutional rights and freedoms, and the limits to those rights and freedoms. These are all significant to criminal law. Focus on:
· s. 1 subject only to demonstrably justifiable reasonable limits prescribed by law (Oakes);
· s. 7 protects right to life, liberty and security of person, and right not to be deprived of these things except in accordance with fundamental justice;
· s. 11 rights that arise when a person is charged with an offence,
o 11(d)to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
Criminal Code, 1985
Codifies the criminal law, on terms set out in ss. 8 and 9:
· s. 8(3) preserves common law excuses or defenses except where “altered by or inconsistent with” the Code or another Act; and
· s. 9 common law offences, UK criminal law, pre-federation provincial criminal law can no longer form the basis for a criminal conviction. (note exception for contempt of court).
Certainty, Vagueness, and Over breadth
Definitions:
· Vagueness: Means its hard to ascertain when the law will apply;
o Certainty: Opposite of vagueness. Has to be certain or its in breach of s. 7 and principles of fundamental justice.
· Over breadth: A law captures more than what is necessary to obtain its objective. (Q to ask: are the means necessary to achieve the State objective?)
R v Heywood
F: Heywood had previous charge of sexually assaulting minors. Was charged for loitering around public park with young children, which is prohibited under s 179(b) of code.
L: CC s 179(b): everyone commits vagrancy who … (b) with specified previous conviction is found loitering in or near school ground, playground, public park, or bathing areas (see code for exact wording).
A: Cory J differentiates between vagueness and over breadth. In this instance section is found to be over broad rather than vague. Found over broad in two aspects:
a) temporal application (applies for life), and b) geographic scope (applied to any public park etc. regardless of presence of children). Cory also deemed it over broad b/c of pple it applies to (any one convicted of SA regardless of circumstances). Additional problem: it can be enforced without any notice to the accused.
Dissent: section doesn’t encompass too many people; the purpose is fit to the restriction as it only applies to sexual offenders. “Notice” not a PoFJ.
C: s. 179(b) deemed over broad.
Ratio: Offence that is overbroad violates s. 7, not in accordance with principles of fundamental justice (PoFJ).
Canadian Foundation for Children, Youth and the Law v Canada (Attorney General)
F: CFCYI claimed s 43 of CC violates rights of Children under Charter s 15 and 2, and is overly vague/broad.
I: Does s 43 violate s 7 due to vagueness or over breadth?
L: CC s 43 justifies parents and teachers using corrective force against children that does not exceed what is “reasonable under the circumstances”.